Tag Archives: Hon Justice Padriwala

Hon JUSTICE J.B.PARDIWALA quashes #fake498a against NRI husband. Guj HC #498aQuash

In this case, wife files #498a case on her #NRI_Husband. Three incidents are alleged, one of which is on on Feb 2014 while the husband has left India on 04th june 2013 !! He seems to have taken employment and is living in Bahrain (Middle East). The Mother in law is projected as a cruel woman but the allegations against her are vague in nature.

The Hon Judge orders as follows “….I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters. In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. …”

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R/CR.MA/12027/2015 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 12027 of 2015

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PARESHBHAI PRAVINBHAI PATEL & 1….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 2
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 02/02/2017

ORAL ORDER

The respondent no.2 although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.

By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants – original accused nos.1 and 2 seek to invoke the inherent powers of this Court praying for quashing of the FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, for the offence punishable under Sections 498A, 323, 504 read with Section 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.

The applicants before me are none other than the husband and the mother-in-law of the respondent no.2 – first informant.

It appears from the materials on record that the respondent no.2 got married to the applicant no.1 on 10th December 2012. It is alleged in the FIR that the husband is addicted to liquor. The husband used to pick up quarrel on petty issues and harass the first informant.

In the FIR, there is a reference of three specific incidents. Let me start with the incident of 15th February 2013. It is alleged that on that day, the applicant no.1 came home heavily drunk and started beating the first informant. According to the first informant, she left the matrimonial home. While at her parental home, she realized that she had conceived. On 28th September 2013, the first informant gave birth to a baby girl at the Civil Hospital, Navsari. It is alleged that no one from the family of the husband came to inquire about the health of the first informant or to have a look at the new born baby. The third incident is dated 26th February 2014. It is alleged that on that particular day, the applicant no.1 called up the first informant on her mobile and told her that if she would get Rs.1 lac from her parents he would come on the next day and take her back to the matrimonial home. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As usual, the mother-in-law has also been projected as a very cruel woman.

Mr.Bharda, the learned counsel appearing for the applicant, submitted that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that the FIR is false for the simple reason that on 26th February 2014, the applicant no.1 was not in India and was in Bahrain (Middle East). The learned counsel pointed out that the applicant no.1 left India on 4th June 2013. This itself goes to show that the FIR was concocted by levelling false allegations. He submitted that there is no case worth the name so far as the mother-in-law is concerned.

On the other hand, this application has been vehemently opposed by Ms.Thakore, the learned APP appearing for the State. The learned APP would submit that the plain reading of the FIR prima facie discloses commission of a cognizable offence. The learned APP would submit that the police should be permitted to complete the investigation so far as the applicant no.1 is concerned. She pointed out that charge-sheet has been filed so far as the mother-in-law is concerned, and in the said charge-sheet, the applicant no.1 has been shown as an absconder. She prays that this application be rejected. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the FIR so far as the applicant no.1 is concerned, should be quashed and the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, so far as the applicant no.2 is concerned, should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters.

In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. Rule made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

MOIN


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Hon J Shri J.B. Pardiwala hits out at stereotype, copy-paste FIRs in his 498a quash !! Dec’16

Hon Justice Shri J.B. Pardiwala hits out at sterotype, copy-paste FIRs in his recent 498a quash !! Dec’16

“…20. This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:
“1. The father of the wife is a beggar.
2. Rs.5,00,000/- has been demanded by the husband and his family members by way of dowry.”
Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned….”

The Hon HC quashes this false 498a cases roping in relatives with an oblique motive !!

*************** case from Gujarat HC website *********************

R/CR.MA/7507/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7507 of 2015

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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BIPINKUMAR DEVENDRABHAI PARMAR & 3….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:

MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 4

MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 2

MS SHRUTI PATHAK, APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2016

ORAL JUDGMENT

  1. By this application under Section 482 of the Code of Criminal Procedure 1973, the applicants-original accused persons seek to invoke inherent powers of this Court praying for quashing the First Information Report registered as C.R. No.I-87/2015 with the Gotri Police Station, District-Vadodara for the offence punishable under Section 498(A), 323, 294(b) read with Section 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act.
  2. The case of the first informant as reflected from the First Information Report may be summarized as under: 2.1 The first informant got married with the applicant no.1 on 19.05.2014. The applicant no.2 is the father-in-law. The applicant no.3 is the mother-in-law and the applicant no.4 is the sister-in-law of the first informant. It appears that within a very short time the matrimonial life of the first informant got disturbed. She thought fit to lodge an FIR on 31.03.2015 i.e. within almost one year from the date of the marriage alleging harassment and cruelty at the end of the applicants herein. It is alleged in the FIR that the husband used to ask the first informant to press his legs and head. It is further alleged that the applicants herein also used to ill-treat the first informant. It is alleged that the applicants used to taunt her that she had not brought sufficient dowry from her parental house.
  3. The learned counsel appearing for the applicants would submit that the allegations leveled in the First Information Report are palpably false. The first informant could not adjust herself at the house of the applicants soon after the marriage. The learned counsel further pointed out that efforts were made by the people of the community to dissolve the marriage on certain terms and conditions. He pointed out that the first informant’s family demanded an amount of Rs.3,00,000/- to dissolve the marriage which was not acceptable to the applicants. He would submit that the allegations are stereo type. It is submitted that even if the entire case as put up by the first informant is accepted as true, none of the ingredients to constitute the offence of cruelty within the meaning of Section 498(A) are spelt out. In such circumstances referred to above, the learned counsel prays that the application may be allowed and FIR be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  4. On the other hand, this application has been vehemently opposed by Mr. Modi, the learned counsel appearing for the first informant and Ms. Pathak, the learned APP for the State. Both the learned counsel would submit that the plain reading of the FIR prima-facie disclose the commission of a cognizable offence. It is submitted that this Court may not embark upon an inquiry whether the allegations are true or false. A primafacie case is to be seen for the purpose of quashing of the FIR. In such circumstances referred to above both the learned counsel would submit that there being no merit in this application. The same may be rejected.
  5. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
  6. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
  7. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
  8. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus: "6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. hat is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
  9. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.
  10. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  11. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:- 28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in out countryAll the courts in our country including this courtare flooded with matrimonial cases. This clearlydemonstrates discontent and unrest in the family life of alarge number of people of the society. 29. The courts are receiving a large number of casesemanating from section 498-A of the Indian Penal Code whichreads as under :"498-A. Husband or relative of husband of a womansubjecting her to cruelty.-Whoever, being the husband orthe relative of the husband of a woman, subjects such womanto cruelty shall be punished with imprisonment for a termwhich may extend to three years and shall also be liable tofine.Explanation.- For the purposes of this section, 'cruelty'means : (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat ofthe moment over trivial issues without properdeliberations. We come across a large number of suchcomplaints which are not even bona fide and are filed withoblique motive. At the same time, rapid increase in thenumber of genuine cases of dowry harassment are also amatter of serious concern.31.The learned members of the Bar have enormous socialresponsibility and obligation to ensure that the socialfiber of family life is not ruined or demolished. They mustensure that exaggerated versions of small incidents shouldnot be reflected in the criminal complaints. Majority ofthe complaints are filed either on their advice or withtheir concurrence. The learned members of the Bar whobelong to a noble profession must maintain its nobletraditions and should treat every complaint under section 498-A as a basic human problem and must make seriousendeavour to help the parties in arriving at an amicableresolution of that human problem. They must discharge theirduties to the best of their abilities to ensure that socialfiber, peace and tranquillity of the society remainsintact. The members of the Bar should also ensure that onecomplaint should not lead to multiple cases.32. Unfortunately, at the time of filing of the complaintthe implications and consequences are not properlyvisualized by the complainant that such complaint can leadto insurmountable harassment, agony and pain to thecomplainant, accused and his close relations. 33. The ultimate object of justice is to find out thetruth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of thesecomplaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, evenafter the conclusion of criminal trial, it is difficult toascertain the real truth. The courts have to be extremelycareful and cautious in dealing with these complaints andmust take pragmatic realities into consideration whiledealing with matrimonial cases. The allegations ofharassment of husband's close relations who had been livingin different cities and never visited or rarely visited theplace where the complainant resided would have an entirelydifferent complexion. The allegations of the complaint arerequired to be scrutinized with great care andcircumspection. Experience reveals that long and protractedcriminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matterof common knowledge that in cases filed by the complainantif the husband or the husband's relations had to remain injail even for a few days, it would ruin the chances ofamicable settlement altogether. The process of suffering isextremely long and painful. 34. Before parting with this case, we would like toobserve that a serious relook of the entire provision iswarranted by the legislation. It is also a matter of commonknowledge that exaggerated versions of the incident arereflected in a large number of complaints. The tendency ofover implication is also reflected in a very large numberof cases.35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may alsonot be able to wipe out the deep scars of suffering ofignominy. Unfortunately a large number of these complaintshave not only flooded the courts but also have led toenormous social unrest affecting peace, harmony andhappiness of the society. It is high time that thelegislature must take into consideration the pragmaticrealities and make suitable changes in the existing law.Itis imperative for the legislature to take intoconsideration the informed public opinion and the pragmatic realities in consideration and make necessary changes inthe relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and tothe Union Law Secretary, Government of India who may placeit before the Hon'ble Minister for Law and Justice to takeappropriate steps in the larger interest of the society."
  12. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick\
  13. They are reproduced below:-"6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPCwas introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is acognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministryof Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011.Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge- sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it soalso the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied inthe Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surelynot considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is oneof the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non- bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officerthat no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, theLegislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. Itis interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. .... ....."
  14. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts. The view taken by the judges in this matter was that the courts would not encourage such disputes. 21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”
  15. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.
  16. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  17. Ms. Pathak, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to the learned APP, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to the learned APP, at the best, the applicants could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).
  18. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-"(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciouslyinstituted with an ulterior motive for wreaking vengeanceon the accused and with a view to spite him due to privateand personal grudge."
  19. I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.
  20. It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court “often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”
  21. This Court over a period of time has noticed that the First Information Report field by wife contains following allegations: “1. The father of the wife is a beggar. 2. Rs.5,00,000/- has been demanded by the husband and his family members by way of dowry.” Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned.
  22. In such circumstances referred to above, this Court was compelled to observe the following in the judgment and order dated 26.09.2014 passed in Criminal Misc. Application No.5819 of 2009.“31.Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and
    his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if
    there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty
    quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their
    character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very
    dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases
    of genuine illtreatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.
  23. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:- “When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.” When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”
  24. What constitutes cruelty in matrimonial matters has
    been well explained in American Jurisprudence 2nd edition
    Vol. 24 page 206. It reads thus:- “The question whether the misconduct complained of constitute cruelty and the like for divorce purposes isdetermined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a  person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under
    another set of circumstances.”
  25. For the foregoing reasons, I hold that if the investigation of the First Information Report is permitted to continue, then it will be nothing but abuse of process of the law and travesty of justice. This is a fit case wherein the inherent powers under Section 482 of the Code should be exercised for the purpose of quashing the FIR. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  26. The application succeeds and is hereby allowed. The First Information Report being C.R. No.I-87/2015 lodged before the Gotri Police Station, District- Vadodara, is hereby quashed. Rule is made absolute.
  27. At this stage, I may only say that since the applicant no.1 and the first informant are quite young they should dissolve the marriage by initiating appropriate proceedings before the Court concerned so that both can start living their own life.

(J.B.PARDIWALA, J.)

ABHISHEK

Wife CANNOT prosecute husband for adultery (S 497 IPC) Classic Justice PARDIWALA, Guj HC judgement

Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Further, A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery..

Notes / Excerpts
* wife who losses her earlier criminal case comes back claiming that her husband is living in Adultery. She files a criminal case (u/.s 497 IPC) against her husband, father in law and another alleged partner of her husband !!
* the Honourable court analyses the entire case, the elements of sec 497 IPC and sec 198 CrPC and orders as follows :
“…13. Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. ….”
“…Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case)…”
* the honourable court goes on to say “…14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. …”
*…Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:- “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law..”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 22748 of 2015

FOR APPROVAL AND SIGNATURE : HONOURABLE MR.JUSTICE J.B.PARDIWALA

==================================
VINOD SAMAT PATARIYA & 2….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
Appearance:
MR AD DESAI, ADVOCATE for the Applicant(s) No. 1 – 3
MS.P J.JOSHI, ADVOCATE for the Applicant(s) No. 1 – 3
MR. H.K. PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 12/01/2016

ORAL JUDGMENT

JUDGMENT

 

  1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the Criminal Case No. 301/15, filed in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC.
  2. The case of the complainant may be summarised as under:-
    • 2.1 The respondent No.2 got married with the applicant No.1 on 8.7.2010. It appears that soon thereafter matrimonial disputes cropped up between the husband and the wife. The respondent No.2 thought fit to lodge an FIR against the applicants Nos.1 and 2 and other co-accused. The prosecution instituted by the respondent No.2 through the State culminated in Criminal Case No. 27/11 and the same resulted in the judgment and order of acquittal dated 29th September, 2014, passed by the learned JMFC, Mandvi, Kutch.
    • 2.2 Soon thereafter, the respondent No.2 thought fit to file a private complaint dated 4.4.2015 against the applicant No.1 i.e. the husband, the applicant No.2 i.e., the father-in-law and the applicant No.3, the lady with whom the applicant No.1 is alleged to be in an illicit relationship. It is the case of the complainant that being a married man, the husband is in an illicit relationship with the applicant No.3 herein and is living an adulterous life. It is her case that the applicant No.2 being the father of the applicant No.1 has abetted the commission of the offence. In the same manner, it is alleged that the applicant No.3 has also abetted the commission of the offence of adultery, as she is in an illicit relationship with a married man.
  3. The learned Magistrate thought fit to take cognizance upon the said complaint and ordered issue of process against the applicants herein for the offence punishable under Sections 497 read with 114 of the IPC.
  4. Being dissatisfied, the applicants herein have come up with this application praying for quashing of the proceedings of the criminal case.
  5. Ms. P.J. Joshi, the learned advocate appearing for the applicants vehemently submitted that the learned Magistrate committed a serious error in taking cognizance upon the complaint and ought not to have issued process for the offence punishable under Sections 497 read with 114 of the IPC. Ms. Joshi submitted that indisputably, the applicant No.3 with whom the applicant No.1 is alleged to be in an illicit relationship, is an unmarried lady. She submitted that even if the entire case of the complainant is accepted as true, none of the ingredients to constitute the offence punishable under Section 497 of the IPC are spelt out. She further submitted that the respondent No.2 in her capacity as the wife of the applicant No.1 has no locus to file a complaint for the offence of adultery.
  6. The respondent No.2, although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.
  7. The learned APP Mr. H.K. Patel appearing for the State of Gujarat submitted that no error could be said to have been committed by the learned Magistrate in issuing the process against the applicants for the offence punishable under Sections 497 read with 114 of the IPC.
  8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the complaint is maintainable in law.
  9. Section 497 of the IPC reads as under: Adultery : Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
  10. According to the definition of adultery referred to above, and in order to constitute an offence of adultery, three essential ingredients are necessary. (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) Such sexual intercourse must be without the consent or connivance of the husband and (iii) Such sexual intercourse must not amount to rape.
  11. Thus, to bring home an offence under Section 497 IPC, the prosecution is to prove (a) that the complainant had married a girl; (b) that a male person outside the aforesaid wedlock had sexual intercourse with the wife of the complainant; (c) that such sexual intercourse did not amount to rape i.e. to say if the wife was above 16, the aforesaid sexual intercourse was consensual. If the said wife be below sixteen whether the coitus with her consent or without, the offence would come under the realm of rape punishable under Section 376 IPC.
  12. Section 198 of the Cr. P.C is with regard to the prosecution for offences against marriage. Section 198 clause (2) along with the proviso reads as under:-
    • 198. Prosecution for offences against marriage
    • (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :
    • Provided that-
      • (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
      • (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him for obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
      • (c) where the person aggrieved by an offence punishable under a [section 494 or section 495] of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister b [or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
    • (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
    • (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
    • (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be counter-signed by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
    • (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
    • (6) No Court shall take cognizance of an offence under S. 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under c [eighteen years of age], if more than one year has elapased from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
  13. Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case). It is the first principle of criminal law that where a statute creates a criminal offence, the ingredients of that criminal offence must be strictly proved.
    • The Supreme Court in the case of Smt. Sowmithri Vishnu Vs. Union of India, reported in AIR 1985 SC 1618(1) observed in paragraph 11 as under:- “11. Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ‘Adultery’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.”
  14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. This may not be applicable when it comes to seeking divorce by the wife or the husband, as the case may be, on the ground of living an adulterous life.
  15. I may also quote with profit a decision of the Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:-
    “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife,the wife cannot be lawfully disabled from prosecuting her disloyal husband. And that in so far as and to the extent S. 198(2), Criminal P.C., operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provision is unconstitutional on the ground of obnoxious discrimination, she asserts.
    4. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu v. Union of India, 1985 (Suppl) SCC 137 : (AIR 1985 SC 1618) in the context of a challenge to the constitutionality of S. 497 2, Penal Code by an adulterer who had been prosecuted for the offence of adultery under S. 497 2, Penal Code, by the husband of the adulteress. Three grounds were pressed into service in support of the challenge rooted in Art. 14 of the Constitution in Sowmithri Vishnu’s case (supra). Ground No. 2 was in the following terms :- 2. “497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” “Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.”
    This ground of challenge has been dealt with by this Court in Para 8 of the said judgment wherein Chandrachud, C.J. spoke thus on behalf of the Court :- “In so far as the second of the three grounds is concerned, S. 497 does not envisage the prosecution of the wife by the husband for ‘adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed the section provides, expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime. The offence of adultery as defined in S. 497, is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends firstly, on the definition of the offence and, secondly, upon the restriction placed by the law of procedure on the right to prosecute.”
    Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to S. 497, Penal Code. The same bullet has now been fired in order to assail S. 198(2), Criminal P.C., in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress. The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the Criminal Court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial Court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.
    5. Section 497, Penal Code, and S. 198(l) read with S. 198(2), Criminal P.C. go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as S. 198(l) read with S. 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of S. 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”
  16. In view of the above, not only the complaint is not maintainable in law, but the husband could not be said to have committed any offence of adultery even if it is believed that he is in a live-in relationship with the applicant No.3, who is an unmarried lady. In view of the above, this application succeeds and is allowed. The further proceedings of the Criminal Case No. 301/15, pending in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from the private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC are hereby ordered to be quashed.

 

 

(J.B.PARDIWALA, J.)

Mohandas

fake 498a with vague sweeping allegations 5 yrs aftr split, quashed by Guj HC !!

Wife files a 498A, 323, 506, 506(2) case approx. 5 years after separation. All she has are vague, general and sweeping allegations, specifying no instances of criminal conduct. The Police also seems to have recorded stereo-type statements of witnesses, who are none other than the parents and relatives of the wife and filed a charge-sheet !! Gujarat HC quashes the case !!

* marriage on 13th April 2006
* wife claims she was harassed etc. and has left matrimonial home on 2 Sep 2010
* then approx 5 years later, on 13 April 2015 she has lodged a complaint and police filed an FIR !!
* though she is angry with her husband she has accused many more relatives of the husband !!
* as mentioned above, the Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the wife and has filed a charge-sheet !!
* Gujarat HC quashes the case !!
* Honourable Justice Padriwala affirmatively quotes the Hon Apex courts dictum “….. Judicial process no doubt should not be an instrument of oppression, or, needless harassment…” and “…If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court..”
* The Honourable Judge also affirmatively quotes many relevant paragraphs from the Apex court’s judgement in Preeti Gupta Vs. State of Jharkhand and Arnesh Kumar Vs. State of Bihar
* The Hon. Judge quotes his own earlier judgement wherein he has observed “….26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing…..”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 15536 of 2015
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VISHALBHAI NIRANJANBHAI ADATIYA & 4….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
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Appearance:
HARSHESH R KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
MR RC KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR NILESH I JANI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2015

ORAL ORDER

1. By this application under Section 482 of the code of Criminal Procedure, 1973, the applicants-original accused seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R. No.II-194 of 2015 registered at Songadh Police Station, Tapi for the offence punishable under Sections 498A, 323, 506, 506(2) read with Section 114 of the Indian Penal Code.

2. The applicant No.2 is the mother-in-law, the appliciant No.3 is the brother-in-law, the applicant No.4 is sister-in-law and the applicant No.5 is the sister-in-law of the respondent No.2-original first informant.

3. The marriage of the first informant was solemnized on 13th April, 2006 with the applicant No.1. In the wedlock a daughter was born. It is the case of the first informant that soon after the marriage, the applicants herein started harassing her mentally as well as physically. On account of such harassment, she left the matrimonial home on 2nd September, 2010. Thereafter, on 13th April, 2015 she thought fit to lodge the First Information Report at the concerned Police Station.

4. Mr. Kakkad, the learned advocate appearing for the applicants would submit that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that almost after a period of five years from the date the first informant left the matrimonial home, the FIR was lodged. He submitted that the allegations are quite general and vague in nature. He submitted that the FIR deserves to be quashed.

5. On the other hand, this application has been vehemently opposed by Mr. H.K. Patel, the learned APP appearing for the State of Gujarat. He submitted that the First Information Report although belated, yet prima facie discloses commission of a cognizable offence and the Police should be permitted to complete the investigation in accordance with law.

6. The respondent No.2 is being represented by Mr. Nilesh I. Jani, the learned advocate who has been appointed by the High Court Legal Services Authority. He is not present when the matter is called out and taken up for hearing.

7. Having heard the learned counsel appearing for the parties and having considered the allegations levelled in the FIR, the only question that falls for my consideration is whether the FIR should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. As usual, on account of matrimonial disputes, the respondent No.2 has not only levelled allegations against the husband but all other members of the family of the in- laws including married sister-in-laws have been roped in. As stated above, it is not in dispute that she had left the matrimonial home on 2nd September, 2010. She lodged the FIR after a period of five years on 13th April, 2015. I had an occasion to deal with this type of issues at length in the case of Dipakbhai Ratilal Patel V. State of Gujarat, Criminal Misc. Application No.5819 of 2009, decided on 26th September, 2014. This Court observed as under:-

“16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases.

The illustrative categories indicated by this Court are as follows:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.

21. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.

22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under :

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, ‘cruelty’ means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.”

23. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. They are reproduced below:-

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. …. …..”

24. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts.

The view taken by the judges in this matter was that the courts would not encourage such disputes. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”

25. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.

26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. Mr. Raval, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

29. I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by Mr. Raval, the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.

It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court

“often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

31. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.

32. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:-

“When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.”

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”

33. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page 206. It reads thus:-

“The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

9. Applying the ratio of the above referred judgment, I have no hesitation in coming to the conclusion that this petition deserves to be allowed. The First Information Report being C.R. No. II–194 of 2015 registered at Songadh Police Station, Tapi is hereby ordered to be quashed so far as the applicants Nos. 2, 3, 4 and 5 are concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

Manoj

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